Norman Macleod, C.J.
1. The accused by name Mhabli Rama Sail from Majali, a British village, on the boundary between British and Portuguese territory in the Kanara District was charged with having committed the murders of three persons on or about September 27, 1917, at Lolliem in Goa territory. The Portuguese authorities commenced the preliminary investigation at once but it does not appear that any names were mentioned in connection with the crime. At any rate it was not suggested that the name of the accused was mentioned in any official record, or that any request was made to the British authorities, as the accused belonged to a British village, to make a search for him. At the present trial Exhibit 13 said the news of the murder spread in a few days and it was rumoured that accused might have committed it He was going from Mahali side to Lolliem on the day of the murder when the witness met him about 11 a. m. and asked him where he (accused) was going. He said he was going to purchase cocoanuts. It is certainly very strange, if this witness had told the investigating officer that he had seen the accused on the day of the murder going towards Lolliem and that the accused actually told him that he was going to purchase cocoanuts, that suspicion did not arise against the accused, and that no attempt was made to discover whether he was present in his own village at Majali or any other place in British territory. If the evidence of Exhibit 13 is now given for the first time it is of very little value. It appears that nothing further was done in the matter till 1922 when the accused was arrested by the Portuguese authorities as being connected with a murder that had been committed at a place called Thalna. He was brought before a Portuguese official called 'Administrator' whose duty it was to investigate cases although he was not empowered to try them. The Administrator in this evidence at the present trial said:--
The accused was arrested in connection with a murder committed at Thalna. I was investigating that case as I am empowered to investigate into such offences. I did not do it as a Police officer. I have nothing to do with the police. They are not under me but under the commandant. The accused was brought into my office to be questioned in connection with the Thalna murder. When I was inquiring into the Thalna murder, as I knew of the temple murder of Shedi, I asked him about id on April 17 and on two successive days. What he stated was taken down in writing.
2. While the proceedings were pending the accused escaped from the Portuguese authorities. He was arrested again in September 1922 in British territory, but the extradition proceedings fell through as the Portuguese Government did not produce evidence. However the Portuguese Government then approached the Bombay Government to sanction the prosecution of the accused in British territory, and sanction was given under the provisions of Section 188, Criminal Procedure Code. The Kanara police were not willing to proceed with the case without a guarantee from the Portuguese Government that the latter would produce the necessary witnesses who were not subject to the process oil the British Courts, and this guarantee was not obtained till December 1923. It is certainly remarkable that although the Portuguese Government would not produce the necessary evidence to secure the extradition of the accused, they asked the British authorities to sanction the prosecution of the accused in British territory, and laid the responsibility on them to collect sufficient evidence to justify a commitment order. The Sessions Judge said:--
The evidence against accused consists of his confession (now retracted and retracted also in the District Court of Quepem in 1922) before the Administrator of Kankon in April 1922 and the statement of Rosa Costa a maid servant working but not resident in Ramchandra's house, who states that accused and another came to the house on she day in question to buy cocoanuts and remained there till witness left after finishing her work late in the evening, still shelling cocoanuts which they made a pretext for staying so late an hour. Evidence of the confession was given by the Administrator (Exhibit 5) and his clerk (Exhibit 8) who both refreshed their memories by referring to a copy of the document recorded at the time .
3. The first question to be answered is whether the evidence of the confession tendered by the prosecution was admissible under the Indian Evidence Act? There is a further difficulty in this case, because the proceedings taken by the Portuguese authorities were not in any way in accordance with criminal procedure in British territory, where there is no office corresponding to the office of an Administrator. The Government Prosecutor at the trial conceded that the Administrator was not a Magistrate and that his inquiry was an extra-judicial proceeding. The real question then was whether the confession was made while the accused was in Police custody. Because if he was in the custody of the police and the Administrator was not a Magistrate, clearly the confession was not admissible in evidence under Section 26 of the Indian Evidence Act. There seems to have been an argument before the Sessions Judge whether the Administrator was a Police officer and if he was, whether a statement made to him could be proved under Section 25. The learned Judge on this point remarks:--
It appears that witness as Administrator is an officer with general executive duties; in criminal matters it is apparently left to his discretion what cases he should investigate; but he is not technically a police officer nor as a matter of substance does he appear to be so, any more than the District Judge who actually went to the spot in 1917 and conducted a far more active investigation
4. So far I can agree.
5. Then the question was whether on the allegation of the accused that he was in police custody the confession so made was a good one. The Judge says:--
The accused was arrested on April 8, 1922; he remained in police custody till May 15; he was examined by the Administrator on April 17 and following days. The police brought accused to the Administrator's office on April 17 and took him away when his statement was taken; the police stood in the verandah and did not come into the Administrator's office This is the usual procedure in bringing an accused person to a Magistrate for confession; and it has been held that in such circumstances the accused is still in police custody--Ratanlal's Unreported Criminal Cases, 855. It may be argued that Section 26 of the Evidence Act does not apply to police officers in foreign territory when such police officers are not in any way concerned with the investigation of the case; if they or their superiors have no interest in securing the conviction of the accused the reason for the provision in Section 26 disappears. In the pro-sent case the investigation appears to have been conducted by the judicial and the executive authorities except for the minor part played by the Justice of the Peace who was also Police Patel.
6. This paragraph of the judgment is quite inconclusive. There is no decision of the Judge that the accused when he made the statement before the Administrator was or was not in police custody. Clearly the accused was in Police custody, and it makes no difference for the purpose of applying the provisions of the Indian Evidence Act that he was in Police custody in foreign territory.
7. Then the Judge considered whether the confession was voluntarily made and came to the conclusion that there was no substantial ground for holding that the confession was not a voluntary confession. I can only conclude from that part of the judgment that the Sessions Judge had determined, although he did not say so directly, to admit the evidence. Otherwise there would be no necessity to consider whether this confession was voluntary or not. It was unfortunate in a case of this importance, when the whole case for the prosecution practically turned on the question whether the confession was admissible or not, that, there should be no decision of the learned Judge on the point, beyond the fact that he allowed the evidence to be recorded. When he came to sum up the evidence he said:--
In reviewing the evidence in the case I feel on firmer ground in discarding the confession of the accused on the ground that it was made in the presence of the police and relying on the evidence of Rosa
8. I can only assume that the Judge, when he said that the confession was made in the presence of the police, meant that it was made when he was in police custody, for the words 'in the presence of the police' do not appear either in Section 25 or Section 26. Although the evidence was discarded, as a matter of law it ought never to have been admitted, and as it was admitted, it is impossible to say what influence it had on the Judge's appreciation of the remaining evidence in the case. We may take it that the Judge convicted the accused practically on the evidence of Rosa alone although in one or two particulars he considered it was corroborated by other evidence.
9. At this point his Lordship examined the evidence in the case apart from the so-called confession and came to the conclusion that it did not satisfactorily establish the identity of the accused.] I do not dispute the fact that under section.167 of the Indian Evidence Act it is permissible for us, in spite of the improper admission of the confess on in evidence, to uphold the conviction if, independently of the evidence objected to, we thought there was sufficient evidence to justify the decision of the Sessions Judge, but I think that if the Judge and the assessors had known nothing more beyond the fact that the accused had made a statement before the Administrator, they would have looked at the rest of the evidence in an entirely different light. On a consideration of the circumstances of the case, and the very meagre evidence after so many years with regard to the identity of the accused, it seems to me, following the usual rule with regard to the weighing of evidence in criminal cases, that there are no sufficient grounds fox-upholding the conviction If therefore, think that the appeal should be allowed and that the accused must be acquitted and discharged.
10. I agree that, if the confession before the Administrator is excluded, there is no other evidence which is sufficient to justify the conviction of the accused. Having regard to the lapse of time since the alleged crime, I do not think that the prosecution evidence relied upon is strong or reliable enough to bring home the charge of murder to the accused beyond reasonable doubt, although no doubt it does raise considerable suspicion
11. As regards the confession, it no doubt might be admissible had the trial taken place in the Portuguese territory. But as the appellant has been tried in British India its admissibility must be judged by the rules contained in the Indian Evidence Act The Administrator before whom it was made is no doubt not a police officer in the ordinary sense, and he appears to have a position somewhat analogous to that of a Committing Magistrate in the British India. He says that he can investigate any case within his jurisdiction and he sends the papers to the District Judge, who has authority to try the case. It is, however, only the District Judge who is empowered to sentence an accused, and the Administrator himself is not empowered to try the case. It is, I think, impossible, in view of the last named fact, to treat him as a Magistrate in the ordinary sense in which that word is used. It is also clear that the Public Prosecutor in the lower Court gave up the contention that he could be treated as a Magistrate. The accused undoubtedly was in police custody when he made this confession, and the only argument which can possibly bring the case outside the terms of Section 26 of the Indian Evidence Act is the one referred to by the learned Sessions Judge, when he said:--
It may be argued that Section 26 of the Evidence Act dues not apply to police officers in foreign territory when such police officers are not in anyway concerned with the investigation of the case; if they or their superiors have no interest in securing the conviction of the accused the reason for the provision in Section 26 disappears. In the present case the investigation appears to have been conducted by the judicial and executive authorities except for the minor part played by the Justice of the Peace who was also Police Patel.
12. This contention, however, is directly opposed to the ruling of the Calcutta High Court in Hiran Miya, alias Abdool Wahid (1877) 1 C.L.R. 21. where it is said that it is immaterial whether the police officer be the officer investigating the case, the fact that such person is a Police Officer invalidates the confession. There is no qualification of the expression 'police officer' in Section 25 or Section 26, just as there is no qualification of the word 'Magistrate' in Section 26 and on that account it was held in another case, Faiz Villah v. Emperor (1913) 3 Cri. Lj. 468., that the word 'Magistrate' in Section 26 would cover a Magistrate, even though he were on leave and at the time not in the District in whish he had been exercising jurisdiction. It seems to me impossible to say that Section 26 does not directly apply to this particular case and therefore the confession must be excluded as inadmissible. Accordingly I agree that the conviction should be reversed and the accused acquitted.